Citation Nr: 1329080
Decision Date: 09/11/13 Archive Date: 09/17/13
DOCKET NO. 13-09 445 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida
THE ISSUES
Entitlement to service connection for tinnitus.
ATTORNEY FOR THE BOARD
Patricia Kingery, Associate Counsel
INTRODUCTION
The Veteran had active service from August 1985 to May 1991.
This appeal comes to the Board of Veterans' Appeals (Board) from a May 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida.
The Board has not only reviewed the Veteran's physical claims file, but also the file on the "Virtual VA" system to insure a total review of the evidence.
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the Veteran if further action is required.
REMAND
The Board finds that further development is required prior to adjudicating the Veteran's claims. See 38 C.F.R. § 19.9 (2012). Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. See 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159.
The Veteran contends that her tinnitus was incurred or caused by her active service. In her June 2011 Notice of Disagreement, the Veteran stated she experienced noise exposure from C-130 Medevacs/transport aircraft in Iraq, carrier flight decks, and gun ranges. While VA Fast Letter 10-35 notes that veterans with a duty MOS of healthcare administrator have a low probability of exposure to hazardous noise, the Veteran has provided competent lay evidence of reported noise exposure in service.
An October 1989 service treatment record noted the Veteran was experiencing ear pain. An April 1991 service treatment record also noted the Veteran reported ear pain. A May 1991 service treatment record noted a history of "ear pressure" attributed to as a symptom of diagnosed allergic rhinitis. The Veteran's service treatment records do not show complaint, treatment, or diagnosis of tinnitus or ringing in the ears during service. At the service separation physical in April 1991, the Veteran's ears were found to be clinically normal. In an associated report of medical history, she denied having any problems with her ears.
An August 2010 VA treatment record noted a past history of tinnitus and that the Veteran complained of "buzzing on and of[f]" for the past five years. A November 2010 VA treatment record indicated that the Veteran provided the medical professional with her service treatment records and hearing tests from her active service. The record noted military noise exposure consisting of serving on Medevac C-130 transport planes in Iraq, flight deck noise, and gun range noise. The record noted the Veteran had tinnitus that as likely as not could have been caused by the noise exposure she suffered during active service.
The veteran's service personnel records have not been obtained. In addition, the veteran has not been afforded a VA examination for the purpose of addressing the etiology of the claimed tinnitus. In order to have a complete record for review by the examiner, the RO should obtain the veteran's service personnel records.
Additionally, VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Such development is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim, but (1) contains competent evidence of diagnosed disability or symptoms of disability, (2) establishes that the veteran suffered an event, injury or disease in service, or has a presumptive disease during the pertinent presumptive period, and (3) indicates that the claimed disability may be associated with the in-service event, injury, or disease, or with another service-connected disability. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006) (noting that the third prong may be satisfied by lay evidence of continuity or equivocal or non-specific medical evidence).
In light of the aforementioned evidence and the Veteran's contentions in this case, as discussed above, the Board finds that she should be afforded a VA examination to determine the relationship, if any, of any current tinnitus and the Veteran's active service.
Accordingly, the case is REMANDED for the following action:
1. The RO should contact the appropriate service department and obtain the veteran's personnel records for the period of active duty. All records obtained must be associated with the claims file. If no records are available, that fact must be documented in the record.
2. Thereafter, the Veteran should be afforded a VA examination to obtain an opinion as to the nature and etiology any current tinnitus. All indicated tests and studies should be performed and all findings should be reported in detail. The examiner should provide an opinion as to whether any identified tinnitus is at least as likely as not (50 percent or greater likelihood) etiologically-related to her military service. In providing the requested opinion, the examiner should specifically address the following:
a) the April 1991 service separation physical in April 1991, at which the Veteran's ears were found to be clinically normal as well as the associated report of medical history in which the Veteran denied having any problems with her ears;
b) the November 2010 VA treatment record finding that it was as likely as not that the Veteran's tinnitus could have been caused by noise exposure suffered in service; and,
c) the Veteran's reports of in-service noise exposure as well as her contentions that her tinnitus was caused by in-service noise exposure.
The claims folder must be made available to the examiner. The examiner should provide a clear rationale and basis for all opinions expressed.
3. Then, readjudicate the appeal. If the claim remains denied, provide the Veteran and her representative with a supplemental statement of the case and allow an appropriate time for response.
The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
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K. J. ALIBRANDO
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).